Wednesday, January 19, 2011

Wikileaks Investigation Exposes Flaw In Current Thinking About Emails

A Cato Institute post argues that our electronic surveillance laws are in need of an overhaul. No real news there.

The post starts by discussing the Wikileaks investigation. I am not going to express an opinion about the Wikileaks matter.

But the post does suggest how email is different from electronic mail – and that the recent Sixth Circuit opinion on government access to email may have oversimplified the analysis. I'll explain.

In the Sixth Circuit case, the court held that the government could not access the content of emails held by a third party without a warrant. I described the case here and here. One of the arguments raised by the court is that emails are like letters delivered by the Post Office, and therefore should have the same protections. Some commentators have suggested that the this is the central analogy in the case. Using this analogy, "outside of the envelope" information, like addresses, post marks, and, return addresses are not considered to be private.

However, the Wikileaks investigation demonstrates that this analogy breaks down. The Wikileaks investigators did not seek the contents of communications, only "outside of the envelope" type information. The post notes:

The D-order disclosed this weekend does not appear to seek communications content—though some thorny questions might well arise if it had. . . . But the various records and communications "metadata" demanded here can still be incredibly revealing. Unless the user is employing anonymizing technology—which, as Soghoian notes, is fairly likely when we're talking about such tech-savvy targets—logs of IP addresses used to access a service like Twitter may help reveal the identity of the person posting to an anonymous account, as well as an approximate physical location. The government may also wish to analyze targets' communication patterns in order to build a "social graph" of WikiLeaks supporters and identify new targets for investigation. . .

The Fourth Amendment lesson is obvious: applying "real world" legal rules to the "digital world" is never uncomplicated.

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